25 U.S.

611
6 L.Ed. 746
12 Wheat. 611

RAMSAY against ALLEGRE.

March 2, 1827

APPEAL from the Circuit Court of Maryland.

This was a libel filed in the District Court by the appellant, Ramsey,
against the respondent, Allegre, alleging that the appellant, at the special
instance and request of the respondent, owner, ship's husband, or
consignee of the schooner Dorothea, had performed various work and
labour, and found and provided various materials for the use of the said
schooner, to equip and prepare her for a voyage on the high seas,
amounting to the sum of 2,428 dollars, 84 cents; that the appellant had
often applied to the respondent for payment, and been refused; and
praying process according to the course of the Admiralty, &c. A plea was
filed by the respondent, alleging, among other things, that he had given
the libellant his negotiable promissory note for the debt. It appeared, at
the hearing, that the appellant had furnished the materials in question at
the respondent's request, and that the latter had given his negotiable
promissory note for the same, which the appellant accepted, giving the
following receipt therefor: 'Received a note, at four months, which, when
paid, will be in full for the above amount.' The note not having been paid,
this suit was brought. The District Court dismissed the libel, upon the
ground, that the jurisdiction of that Court, as an Instance Court of
Admiralty, in the cause, was waived by the acceptance of the promissory
note; and the decree having been affirmed in the Circuit Court, upon the
same ground, the cause was brought by appeal to this Court.
Feb. 19th.
The Attorney General and Mr. Meredith, for the appellant, argued, that
the District Courts, proceeding as Courts of admiralty and maritime
jurisdiction, might take cognizance of material suits by material men,
either in personam or in rem.a The only question here was, whether the
jurisdiction was waived by the appellant's taking the note as conditional
payment. The note did not extinguish the debt, and, consequently, could
not affect the jurisdiction which originally attached on account of the

nature of the debt. Without some special agreement to consider the note as
payment, it could not be so regarded. It only operated as a suspension of
the remedy during the time allowed for its payment. If unpaid, the party
might resort to his original right of action, as if no note had been given.b
Such is the doctrine of the common law; and the civil law, which gave the
rule to the admiralty, would be found in accordance. A novation is the
substitution of a new for an old debt, by which the latter is extinguished.
It may be made of a debt payable at a future day, or of a debt presently
due, by a new engagement, allowing a term of credit. But the consent of
the creditor must be positively declared, as the law will not presume that
he means to abandon his rights under the first contract.c No authority or
principle could be found to warrant the assertion, that, although the
original contract in this case was not extinguished, the suspension of the
right of action took away the jurisdiction of the admiralty, so that it could
not again be resorted to.
Mr. Hoffman and Mr. Meyer, contra, insisted, that the promissory note
given in this case was a personal security taken on land, and in all respects
assimilated the case to that of the claim for the master's wages. Although,
in general, locality might not be the test of admiralty jurisdiction, it might
reasonably be contended that where the credit is personal, and the security
of a kind exclusively cognizable at common law the locality should fix the
jurisdiction. In the case of contracts, the admirality jurisdiction, in
personam, ought to be merely co-extensive with the proceeding in rem:
and as the domestic character of the vessel freed the thing from
jurisdiction, the person of the owner ought also to be exonerated.d As a
security had been accepted, which had the effect of extinguishing a
common law lien during the term of the note, no process could have been
instituted in the admiralty on the original contract; and the idea of
reviving a jurisdiction, which had been thus suspended, was a novelty not
countenanced by any legal analogy. Supposing the jurisdiction of the
Admiralty to be dependant upon the existence of a lien as defined by
positive law, the authorities would show that such a lien was extinguished
at common law by a new agreement.e It had been expressly determined,
that in cases of dealings or obligations, naturally within the appropriate
jurisdiction of the Admiralty, if a special contract be entered into, or a
special security be taken, the common law jurisdiction will attach as in
ordinary cases, even though the new agreement does not operate
technically by way of extinguishment.f
March 2d.
Mr. Chief Justice MARSHALL delivered the opinion of the Court: that,

as it did not appear by the record, that the note had been tendered to be
given up, or actually surrendered, at the hearing in the Court below, the
decree would be affirmed, it not being necessary to consider the general
question of jurisdiction.
Mr. Justice JOHNSON.

I concur with my brethren in sustaining the decree below, but cannot consent to
place my decision upon the ground on which they have placed theirs. I think it
high time to check this silent and stealing progress of the Admiralty in
acquiring jurisdiction to which it has no pretensions. Unfounded doctrines
ought at once to be met and put down; and dicta, as well as decisions, that
cannot bear examination, ought not to be evaded and permitted to remain on the
books to be commented upon, and acquiesced in, by Courts of justice, or to be
read and respected by those whose opinions are to be formed upon books. It
affords facilities for giving an undue bias to public opinion, and, I will add, of
interpolating doctrines which belong not to the law.

There need be no stronger illustration given than this case affords. Here is a
libel, in personam, on a contract, in the Admiralty filed expressly upon the
authority of the case of The General Smith. I had never read the report of that
case, that I recollect, until the argument in this cause; or, if I had, I attached so
little importance to any thing in it besides the point that it decides, as to have
forgotten that such doctrines were to be found in the reports of our decisions.
But, upon being examined, what does it amount to? A gentleman of the bar,
whose knowledge, particularly in the Admiralty, commanded the highest
respect in this Court, is reported to have laid down a doctrine in very explicit
terms, which, I will venture to say, has no authority in law; and the Court,
carried away probably by the influence of his concessions, echoes them in
terms which are not only not called for by the case, but actually, as I conceive,
contradicted by the decision which is rendered.

The correctness of the decision in the case of The General Smith, cannot be
questioned; it dismisses the libel upon the ground, 'that material men and
mechanics, furnishing repairs to a domestic ship, have no particular lien upon
the ship itself for the recovery of their demands.' But why have they no lien
upon the ship? or, to speak more correctly, why are they precluded from a
remedy in the Admiralty for subjecting the ship to arrest and sale in order to
satisfy their demands? It is because jurisdiction over the contract has been
taken from the Courts of Admiralty, and the exercise of jurisdiction, in such a
case, prohibited to them by the common law Courts of Great Britain for

hundreds of years. And it is a fact of the most positive certainty and notoriety,
that so far from retaining jurisdiction over this contract in personam, after being
driven from jurisdiction in rem, that the former was first surrendered, and that
in the most unequivocal terms.
4

I refer to the resolutions of February, 1632, adopted by the King in council, and
subscribed by all the judges in England, and to be found in the collection of the
sea laws, and in various other books; by the second section of the second article
of which it is declared; that 'if suit be in the Court of Admiralty for building, or
mending, saving, or necessary victualing of a ship, against the ship itself, and
not against any party by name, but such as for his interest makes himself party,
(i. e. a claimant,) no prohibition is to be granted, though this be done within the
realm.'

This resolution implies an express recognition, that if such suit be instituted

against the person, a prohibition shall issue. And this I hold to be the test of
admiralty jurisdiction; for wherever a prohibition will issue, the jurisdiction has
been taken away from the admiralty, or it never possessed it. And, accordingly,
for two hundred years has this jurisdiction been abandoned by the British
Courts, with the single exception of seamen's wages; an exception, of which it
may emphatically be said, 'probat regulam.' For, if any one will take the
trouble to refer to the language of Ch. J. Holt, in the case of Clay v. Snelgrave,
he will there find it said, 'that it is an indulgence that the Courts at Westminster
permit mariners to sue for their wages in the Admiralty Court, because they
may all join in suit, and is grounded upon the principle, that 'communis error
facit jus." (Lord Raym. 576.)

This privilege is denied to the master, and even to a mate succeeding to the
master, when he sues for his wages as master; so rigid are the Courts of
Westminster in confining the admiralty to the few contracts over which it is
permitted to retain jurisdiction. And when it is argued, that this discrimination
to the prejudice of the master, is confined to his suit in rem, and that no case
can be found in which his remedy in personam, in the admiralty, has been
denied him, it becomes necessary to remind counsel, that this may have
proceeded from no one's ever having had the temerity to prefer such a suita
consequence which would necessarily follow from what I hold to be
undeniable, that, except on the contract for seamen's wages, the proceeding in
personam upon contracts is now unknown to the British admiralty tribunals.

I will sketch a brief history of the admiralty jurisdiction over contracts, and a
view of its present state.

The study of the history of the admiralty jurisdiction in England, in common

with that of all the Courts of that kingdom, except the common law Courts,
presents an instructive lesson on the necessity of watching the advancement of
judicial power, in common with all power; inasmuch as it shows in what small
beginnings, and by what indirect and covert means, aided by perseverance and
ingenuity, originated the mighty structures against which, ultimately, the
legislative and judicial power of the country had to exert the full force of their
united efforts.

The vast variety and importance of the subjects which the admiralty had
appropriated to itself, will appear in a variety of authors; but I would refer the
reader to Godolphin's 'View of the Admiral Jurisdiction,' as well for its antiquity
as the great learning and respectability of the author. There, it will be seen, that
the admiralty, before the time of Richard II. had arrogated to itself a scope of
judicial, legislative, and ministerial power, which withdrew from the trial by
jury, and placed under the surveillance of the crown, of which the admiralty
was only the representative, more than half the jurisprudence, and particularly
the commercial jurisprudence of the kingdom.

10

The statutes of 13th and 15th Richard II. were passed to set limits to this power,
but such was the stability it had already acquired, that it was not until the act of
2 Henry IV. coll which gave to the subject exactly the right which the
constitution of the United States gives to its citizens, against unconstitutional
laws, was passed, that this overgrown power could be effectually restrained.
For it could then no longer prescribe its own limits in prejudice of the
individual and to the exclusion of his common law rights. Neither the King nor
his proctor could any longer justify or secure the individual who resorted to the
Admiralty in a case in which the common law could give redress. (3 Levinz.
353.)

11

The act of 13 Richard says, upon complaint of encroachments made by the

admirals and their deputies, it is enacted, 'that the admirals and their deputies
shall meddle with nothing done within the realm, but only with things done
upon the sea;' and the 15th Richard, c. 3. 'that in all contracts, pleas, and
quarrels, and other things done within the bodies of counties, by land or water,
the admiral shall have no cognizance, but they shall be tried by the law of the
land.' And the 2d Henry IV. c. 11. provides, 'that he that finds himself
aggrieved against the form of the statutes of Richard, shall have his action by
writ grounded upon the case against him that so pursues in the Admiralty, and
recover double damages.'

12

The check given by legislative provision was followed up by prohibitions from

12

The check given by legislative provision was followed up by prohibitions from

the common law Courts, and suits under the statute of Henry, until, upon the
murmurs of the Lord High Admiral at the checks imposed upon his power, the
subject was taken up by the King in council in 1632, and a kind of compromise
entered into, to which all the different tribunals appear to have at first
conformed; but in which, after a time, the common law judges appear to have
discovered, that the crown and the Admiralty had gained too decided an
advantage over them to admit of its being adhered to as a correct exposition of
the statutes of Richard. Hence, in the 3d edition of Croke's Reports, at the end
of the 2d volume, we find these resolutions declared to be of no authority, as
undoubtedly they were not, since it was not a regular judicial act. But in this, it
must be noticed, that the authority denied to those resolutions was not on the
subject of those powers which the Admiralty renounced, but of those which
they retained.

13

Upon this ground, it is well known, that these resolutions, although printed in
the 1st and 2d editions of Croke's Reports, were omitted from the 3d. The
mantissa at the end of the edition of 1767, declares their rejection as authority.
But, even before the adoption of those resolutions, a decision had taken place,
which was conclusive, as well against their jurisdiction over the particular
contract here under consideration, as against their right of proceeding upon it by
process in personam.

14

I allude to Craddock's case, (2 Brownl. 37.) which was decided in the 7th of
James, or in the year 1608, twenty-four years before the date of these
resolutions. This was listinctly the case of a material man; his purchases were
of cordage, powder, and shot, for a ship, and the party of whom they were
bought sued Craddock in the Court of Admiralty. A prohibition was granted,
and the reason assigned by the Court is, that the statute 13 Richard II. 'that the
admiral shall not meddle with things made within the realm, but only of things
made upon the sea, and here the contract was at St. Katharine's Stairs, in the
body of a county.' And thus we see, that in the resolutions alluded to, the claim
to jurisdiction in personam, denied the Admiralty by the effect of that
adjudication, is abandoned by them; at the same time that they assert the right
to exercise jurisdiction in rem upon the same class of contracts. It was not long
after, however, that the exercise of jurisdiction in rem was also taken from
them. And yet there is a semblance of authority for their having exercised it
during the interval of time between the adoption of the resolutions of 1632, and
when they were declared to be of no authority. I allude to that quotation from 1
Rolle's Abr. 533. which is copied into Bacon's Abridgment, p. 196. of the 1st
vol. and there, together with the note which refers to Cro. Charles, 296. has
remained the permanent source of many an error to those who have not taken
the trouble to examine into the authority for the law there laid down.

15

This subject will be found learnedly examined in the cases of Clinton v. The
brig Hannah and ship General Knox, decided in the Admiralty by Judge
Hopkinson, of Pennsylvania, in the year 1781; and by Judge Bee in the
Admiralty of South Carolina, in the case of Shrewsbury v. The sloop Two
Friends, in 1786; in both which cases the authority of those quotations is
rejected, and the lien of the shipwright to sue in rem in the Admiralty denied.
(Bee's Adm. Rep. 419. 433.)

16

Both those cases go to show the law of this subject at the adoption of our
constitution, and they merit high respect, both for the known abilities of the
judges who pronounced them, and the intrinsic learning they display. They
show plainly, that the quotations mentioned rest altogether on the authority of
the resolutions of 1632, to which certainly no lawyer will attribute authority
any farther than they go to show, that the Admiralty did not even then pretend
to the jurisdiction in personam upon contracts at all, and upon very few even in
rum.

17

It may seem surprising, that from the time of Richard the Second down to the
beginning of the 17th century, the jurisdiction of the Admiralty Court should
have attracted so little of the attention of the common law Courts. One principal
cause will be found in the civil wars, and the low state of commerce; and when
the nation returned to a state of tranquillity, the power and vigour of her
monarchs left little scope for legislative or judicial action. Yet there are cases to
show, that the subject was not forgotten; and when the increase of commerce,
and the weak reign of the Stewarts, presented a motive and an opportunity, that
the attention of the nation was attracted to the usurpations and unconstitutional
power exercised by that Court.

18

It is obvious, also, from the cases and discussions of that day, that the common
law Courts were embarrassed by a technical difficulty, arising out of the
necessity of laying a venue to every action. As soon as this was removed, (and
the advocates of the Admiralty murmur very much at the supposed absurdity of
removing this absurdity,) the progress of the common law Courts was rapid in
wresting from the Admiralty every species of contract, leaving them none to act
upon, on which they could themselves render complete justice according to the
established rights of the parties. They are charged with absurdity and
inconsistency, but I pronounce the charge utterly groundless; for the one
principle runs through all their decisions, that of subjecting to the trial by jury
every cause in which that form of trial could be applied without injury to the
parties's rights. It is true, that where they found them in the exercise of a power
analogous to that of a Court of equity, they did not take from the Admiralty a
power which they should only have handed over to another civil law Court;

they had no motive, if they had the power, to make the transfer. And hence the
Admiralty is left in the exercise of jurisdiction in cases of hypothecation,
bottomry, and a kind of specific execution between part owners of ships. Their
jurisdiction of prize and salvage are royalties, and that over seamen's wages is a
peculiarity, but perfectly reasonable and consistent, in whatever light it be
viewed. In the sea laws it is called 'a custom of the realm.' Ch. J. Holt, we have
seen, puts it on the ground of a positive concession and communis error. And
the judges often say, 'we permit them to exercise this jurisdiction, because they
may sue together there, and must sue seyerally in the common law Courts, and
there they can have remedy upon the body of the vessel, which they cannot
have here;' thus placing the exception in their favour upon the conceded ground
of incapacity in the common law Courts to do complete justice, and the
equitable ground of preventing a multiplicity of suits.
19

My own opinion is, that it stands on a much higher ground, and has its basis in
the same policy which makes their wages to depend on the safety of the ship
they navigate, by giving them, in that event, every possible chance of getting
compensated. To which we may add, that their thoughtless character and
ignorance renders them emphatically the wards of the Admiralty, while the law
on which they earn or lose their wages is a system of the Admiralty. The
assertion of the general principle against the captain's contract, finds its solution
in his right to receive the freight in preference even to his owner, and thus to
pay himself; and in the perfect competence of the common law Courts to do
justice in his contract with the owner. In the case of ransom, he still may resort
to the Admiralty, and proceed in rem.

20

But, right or wrong, it is not to be questioned at this day, that the Admiralty
have lost their jurisdiction over contracts, with the exceptions stated. The most
animated advocates of the Admiralty do not deny this. They mourn bitterly over
its fall, but uniformly acknowledge that they are eulogizing the dead. In
Godolphin, Sir Leoline Jenkins' Works, and the collection of the Sea Laws, will
be found all in substance that ever was said on this subject. Yet they all
unequivocally acknowledge that its jurisdiction has long since been at an end
over contracts, and in personam, with the exceptions I have stated; while they
dwell eloquently on the folly of plucking this 'diamond from the crown;' and
enlarge greatly on the inconvenience of leaving to a jury the decision of causes
which could be so much more advantageously disposed of by a single Judge,
and by a system of laws peculiar to the Admiralty Courts; and arraign with
severity the inconsistencies, absurdities, and unkindly feelings, with which the
common law Courts have stripped the Admiralty of its ancient and eminent
power. Even Brown, the modern champion in Europe of the Admiralty
jurisdiction, but who obviously has only caught the feelings, and borrowed the

arguments of those who have gone before him, is forced reluctantly to

acknowledge that the Admiralty has for ages been stripped of these powers,
though he would spare no effort to restore them if he could. (See Appendix to
his 2d vol. and note at the end, said to be omitted at p. 100.)
21

It has sometimes been contended that the decisions of the common law Courts,
as exemplified by their granting prohibitions, is not conclusive against the
Admiralty jurisdictionthat it is a disputed jurisdiction, and therefore that the
Admiralty judges themselves should be heard in this 'Litis Contestatio.'

22

But this is obviously incorrect; for the Court of King's Bench, by its
acknowledged jurisdiction, as exemplified in the very exercise of its power to
prohibit, is the very source to which we are to look for lights to determine the
respective powers of the inferior Courts. And the decisions that have taken
place on this subject, are nothing less than judicial expositions of the statutes
which limit the powers of the Admiralty. They amount to the construction and
application of the law of the realm, of the statute law, and are therefore
conclusive. So every lawyer knows they are held to be in the British Courts;
and together, they make up that system of law which, by universal consent, was
adopted in the Admiralty Courts in this country before the revolution, at least
on the subject of jurisdiction over contracts, and in personam. I will now take a
brief view of some of the leading decisions, in England and in this country, on
the subject of contracts.

23

The quotations I shall first make have two objects in view; first, to show that
the particular contracts under consideration, to wit, of material men, have been
denied to their jurisdiction; and secondly, that, in every instance in which they
have been prohibited from the exercise of jurisdiction over contracts, it has
been upon a ground that is fatal to the exercise of jurisdiction in this and similar
causes.

24

On this latter subject it would be unnecessary to search further than that article
in the 4th Inst. (138. 141.) in which Sir Edward Coke gives a detailed account
of his own answers to the complaints of the Lord High Admiral to the King,
against the restraints then recently imposed by the common law Courts upon
his jurisdiction. This was early in the reign of James the First; and
notwithstanding the revival of the clamours against that learned judge on the
same subject, I cannot but express the opinion that it is a calm, dignified,
learned, and triumphant answer. The authorities which he cites are valuable for
their antiquity, as they show that the Courts in his time were only treading in
the steps of those who had preceded them.

25

Thus, to prove that charter parties were without their jurisdiction, he cites Hare
v. Unton, (31 Hen. VI.) and observes that there were an infinity of cases to the
same point.

26

To prove that policies of insurance were not of Admiralty jurisdiction, he cites

Crane & Pell, (38 Hen. VIII.)

27

To prove that maritime contracts, notwithstanding a foreign origin, are not to be

taken from the common law Courts, he cites 28th, 39th, and 40th Eliz.

28

And finally, it is important to advert to the manner in which he explains the rule
by which it is to be determined whether any given contract is or is not of
Admiralty jurisdiction; which is no other than by showing from adjudged cases,
that the common law Courts have exercised and can exercise jurisdiction over
the same contract. (p. 141.)

29

Sir Matthew Hale, in his History of the Common Law, when sketching the
jurisdiction of the Admiralty, says, 'the jurisdiction of the Admiral Court, as to
the matter of it, is confined by the laws of this realm to things done upon the
high sea only; as depredations and piracies upon the high sea; offences of
masters and mariners upon the high sea; maritime contracts made and to be
executed upon the high sea; matters of prize and reprisal upon the high sea. But
touching contracts or things made within the bodies of English counties, or
upon the land beyond the sea, though the execution thereof be in some measure
upon the high sea, as charter parties, or contracts made even upon the high sea,
touching things that are not in their connexion maritime, as a bond or contract
for payment of money, &c. these things belong not to the Admiral's
jurisdiction. And thus the common law and the statutes of 13 Rich. 2. chap. 15.
15 Rich. 2. chap. 3. confine and limit their jurisdiction to matters maritime, and
such only as are done upon the high sea.' (Chap. 2. p. 35.)

30

I have before cited the case of Craddock, from Brownlow, to show how early
the Admiralty was prohibited from exercising jurisdiction, and that in
personam, on the contracts of material men. In a note to Abbot on Shipping,
(page 136.) it is asserted that the same is reported in Owen, under the title Leigh
against Burleigh. But I think it clearly a distinct case, as not only the parties but
the facts are different; (Owen, 122.) but the principle of the decision is the
same.

31

In Sheppard's Abridgment, (vol. 1. p. 125.) is to be found an excellent summary

of the ancient Admiralty law; and one article merits notice, as it serves very

distinctly to show the true origin of the articles in Rolle and Bacon's
Abridgment, which have been so often relied upon as authority for a contrary
doctrine. He quotes 3 Cro. 296, 297. for the following doctrine, 'that a suit may
be in the Admiralty Court for building, saving, amending and victualling of a
ship against the ship itself, not against the party, but such as make themselves
for their interest parties.' This is the very language of the resolutions of 1632,
and those are the pages in which they were inserted in the two first editions of
Croke, before they were exploded.
32

Sir Leoline Jenkins, whose authority certainly no advocate of the Admiralty

will deny, acknowledges, in so many words, that the Admiralty could not
exercise jurisdiction over the contracts of material men. (1 vol. 83.)

33

That the remedy against the ship itself, has long since been taken away, is
established by many authorities. In the American edition of Abbott on Shipping,
a work entitled to great respect, it is laid down, in very general terms, 'that a
shipwright, who has once parted with the possession of a ship, or has worked
upon it without taking possession, and a tradesman who has provided ropes,
sails, provisions, or other necessaries for a ship, are not, by the law of England,
preferred to other creditors, nor have any particular claim or lien upon the ship
itself for the recovery of their demands.' (p. 135.)

34

That the author is here speaking of a 'claim or lien' in the Admiralty, is fully
established by reference to the cases which he cites and comments upon. The
authorities he cites fully bear him out in his doctrine. They are chiefly Hoare v.
Clement, 2 Show. Justen v. Ballam, 2 Lord Raym. 805. Watkinson v.
Barnardiston, 2 P. Wms. 367. And numerous other cases might be cited, both
ancient and modern, to the same effect, upon which the doctrine seems fully
established in England, that neither shipwrights nor material men can sue in the
Admiralty, either in personam or in rem, without express hypothecation, and all
assigning the universal reason, that they have the common law Courts open to
them. (See also Bushnel v. Suel, 1 Vesey, 155.)

35

Some of those loose obiter dicta in which the most eminent and prudent judges
sometimes indulge, have been attributed to an eminent English jurist, which
have been thought to cast some doubt upon these doctrines in modern times.
The facts stand thus: in 17th Geo. III. Lord Mansfield is reported to have said,
in the case of Rich v. Coe, (Cowp. 636.) 'that a person who supplies a ship with
necessaries, has not only the personal security of the master and owner, but also
the security of the specific ship.' And, again, nine years after, he is reported to
have repeated the same dictum in the case of Farmer v. Davis, (1 Term Rep.
108.) in both instances, however, mere gratis dicta with regard to the points

decided.
36

But, in opposition to this, we have the expression of Lord Kenyon in the case of
Westerdell v. Dale, which occurred eleven years after, in which he is reported
to have said, that he doubted whether the doctrine had not been too generally
laid down by Lord Mansfield, and referred to the authority of some of the old
decisions, which establish the contrary doctrine. Indeed, when we refer to the
language of Lord Mansfield himself, in the case of Welkins v. Carmichael,
which occurred only two years after Rich v. Coe, it is difficult to imagine how
the same judge could have held such inconsistent doctrines. For there (3 Dougl.
101.) he is reported to have decided, 'that a carpenter, in parting with his
possession, had lost his lien, if he ever had one;' 'that creditors for stores and
provisions had no lien,' 'and that work done for a ship in England is supposed to
be on the personal credit of the employer, although, in foreign ports, the master
might hypothecate.' This is all consistent with the established doctrines of the
English Courts; and the truth is, that if this learned judge had had the subject
fully before him, on a motion for a prohibition, he would never have
confounded the law of other states, or other times, with the common law of
England in his time. To do him justice, what he decides in the last case, should
be received as what be meant in the two former.

37

In the third American edition of Abbott on Shipping, p. 160. I find a note in

these words: 'It does not appear, that it has ever been held in the Courts of the
United States, that shipwrights and furnishers of supplies in the ports of the
United States have not a lien on the ships, or a right to Admiralty process, to
recover the amounts due them. The question has not, to my knowledge, arisen
in the Supreme Court of the United States. But in the District Court of
Maryland, after a very learned discussion, Winchester, Justice, decided, that a
shipwright, by the maritime laws, has a lien on the ship for repairs done, and
materials found by him while the ship is in a port of the United States. (Stevens
v. The ship Sandwich, 1 Peters' Rep. 233. note.) The same opinion was given
by Peters, Justice, in Pennsylvania, in Gardner v. The ship New-Jersey, 1
Peters' Rep. 223. (See also, 1 Roll. Abr. 533. l. 15. Cro. Car. 296.')

38

From this note it appears, that the learned editor, to whom, I presume, it is to be
attributed, was not aware of the two decisions rendered by Judges Hopkinson
and Bee, to which I have above alluded. Both of them will be found directly in
point against the shipwright's lien, and the research and learning which they
display will be found worthy of the high reputation of the judges who rendered
them. These cases will also be found interesting, from the circumstance of their
containing criticisms upon the authority of the law upon which both Judges
Peters and Winchester appear to have been misled; I mean the standing

quotation from 2 Bacon, with its usual accompaniments from Roll. and Cr. Ch.
i. e. Roll. Abr. 533. and Cro. Ch. 296.
39

I cannot, however, admit, that the decision of Mr. Peters, in the case of the
New-Jersey, is a case in point on the proposed subject. For the question of the
lien of material men or shipwrights did not there arise. It is only mentioned
arguendo, as an apology for making an allowance to the captain out of funds in
the registry, for wages paid, and supplies furnished the vessel from his own
funds. An allowance, which he at last excuses in a note, by saying, 'that it was
not opposed,' and for which he might also have plead the high authority of the
case of Watkinson v. Barnardiston, (2 P. Wms. 367.) in which the same thing
was done, and that of The John (3 Rob. 288.) But the doctrine laid down as to
material men and shipwrights by the learned judge, are gratis dicta, and, as is
fully shown in the case of The General Knox, cannot be sustained by the
authority quoted.

40

With regard to Judge Winchester's decision in the case of The Sandwich, it

cannot be denied that it is directly in point. But, it is equally true, that it appeals
to no authority that can sustain it. It is not by an exhibition of learning that
decisions are to be tested, but by sound conclusions from unquestionable
premises. To obstruct our inquiries by a battery of cases, or learned and remote
quotations, often obtain from faith concessions that ought to be yielded only to
investigation. I admit, that Judge Winchester's decision is characterised by
learning, but certainly his premises cannot be conceded to him; they are
founded in error. His course of reasoning is this:

41

'The constitution of the United States vests in the United States Admiralty and
maritime jurisdiction, and that jurisdiction is vested in the District Court.' 'In
England, (I now quote his words,) where the jealousy of the civil law was most
conspicuous, while its authority was openly denied, the principles of equity
derived from that code influenced the decisions of their Courts in as great a
degree as in countries where it was adopted. In all of which, from the books
within my power, I can obtain any legal information, every contest or dispute
between the owners and mariners, and the owners and builders, or equippers of
a ship for navigation on the sea, is of a maritime nature, and cognizable in the
Admiralty.' He then goes on to observe, 'that the statutes of 13th and 15th
Richard II. have received a construction which must, at all times, prohibit their
extension to this country;' and, finally, when he comes to state the proposition,
'Has a shipwright a lien on the vessel by him repaired for the value of his
materials, labour,' &c.? he says, 'to decide this question, it is necessary to
examine the nature of liens and privileged debts at the civil law;' and,
accordingly, he proceeds to examine what is the law of various countries of the

continent, which are subject to the civil law, and concludes with adopting two
propositions, thus: 'I am, therefore, of opinion, that a ship-carpenter, by the
maritime law, has a lien on the ship for repairs in port; and that the cause being
a maritime cause, the Court has a jurisdiction over the person as well as over
the ship.' The authorities which he quotes are, Zouch, Beawes, Valin, Rolle's
Abr. 533. and 1st Bacon, 178.
42

Now, learned as this decision may be, it is obvious that it is but a tissue of
errors, since it adopts the civil law as its guide, and the Admiralty law, in the
time of its most extravagant pretensions, positively denying the authority of the
statutes of Richard, and the modifications which they introduced into the law
maritime.

43

The laws of the continent of Europe furnish no authority on this question. Every
state has its own laws on these contracts, as have most of the States of this
Union. The ordinance of Louis XIV. on which Valin comments, is the statute
law of France, and expressly vests in its Courts maritime jurisdiction over a
variety of contracts which the common law Court has taken from the
jurisdiction of the Admiralty. The question is not what the civil law would give,
but what remains to the Admiralty of that jurisdiction, which no one denies that
it had assumed under the authority of civil law principles.

44

The laws of Oleron, which may be called the statute law of Great Britain in
maritime affairs, and which I and pleased to find published in Mr. Peters' first
volume, together with Postlethwaite's Commentaries, give none of these powers
over contracts to the Admiralty.

45

I think it has been sufficiently shown, and, indeed, in denying authority to the
British decisions under the statutes of Richard, Judge Winchester must be held
to admit, that the British decisions are contrary to his decision on the lien of the
shipwright.

46

Mr. Brown, (in his 2d vol. p. 80, 81.) distinctly acknowledges it to be settled,
'that no person can sue in the Admiralty for work and labour done in the port
before the voyage begins, or necessaries sold for the ship's use before she sails,
nor even where supplied to a foreign ship lying in a British port.' Where money
is lying in the registry, as in the case decided by Judge Peters, there has been a
disposition manifested recently, to get over the rigid rule, if there could be
found an excuse for it; but none yet, I believe, has been found, except for
money actually expended by the captain, and for which he might have
hypothecated. There, perhaps, it may be considered as a quasi hypothecation. (3

Term Rep. 323. 2 P. Wms. 367. 2 Rob.)

47

I will now show that Judge Winchester is equally unsustained in his other
principle, to wit, that 'on a maritime contract, as a general proposition, the Court
of Admiralty has jurisdiction over the person as well as over the ship.' I will not
refer to the instance of bottomry by the master, because I do not believe that he
had in mind that case, but will confine myself to the distinct proposition, 'that in
no case of contracts, except that of seamen's wages, can the Admiralty proceed
in personam,' which is the point now before this Court.

48

I have referred to the celebrated resolutions of 1632, in which, when the

Admiralty were solemnly gathering up and consecrating, as they thought, the
remains of their jurisdiction, this right is, in express terms, relinquished; to
Sheppard's Abridgment, in which, at a period long subsequent, such is given as
the purport and exposition of that document; and I have quoted Craddock's
case, and Leigh and Burleigh's case, in which the Court of Admiralty was
expressly prohibited from proceeding in personam in behalf of material men. I
should think here I have a right to demand, if from the whole library of law
books, and God knows we have enough of them already, 'camel loads,' a single
attempt to proceed in personam, upon a contract in the Admiralty, except for
seamen's wages, since the date of the resolutions of 1682, can be extracted.
Adjudged cases cannot be found, because, since the antique cases to which I
have referred, the right has been abandoned. Dicta enough can be produced,
and some of those very modern.

49

Godbolt speaks of the process in rem, as the only process issuable in the first
instance from the Admiralty, (260.)

50

In the edition of Abbott, which I have quoted, in a note upon the case of Hoare
v. Clement, (p. 136.) a case arising on a contract for necessaries, it is admitted,
'that the Court of Admiralty had no jurisdiction over the person in that case.'

51

In Johnson v. Shippen, (2 Salk. 983.) in which a libel was filed against ship and
owners, on an hypothecation for money borrowed abroad on her voyage, it was
argued that, if suit lay against the owners at all, it lay at common law, and a
prohibition was granted as to the suit against the owners, but refused as to the
vessel.

52

In Bull v. Trelawney, (16 Ch. 1.) Trelawney had sued in the Admiralty on a
foreign contract, in personam; obtained judgment, and Bull was in gaol. The
latter brought his action under the stat. 2 Hen. VI. c. 11. recovered double

damages, and was discharged on habeas corpus, on the ground of being in

confinement in a cause 'coram non judice.' (Cro. Ch. 603. and 3 Lord Raym.
982.)
53

Brown, (2 vol. 100.) lays down the rule in these terms: 'The general rule,
however, at present, is, that the Admiralty acts only in rem, and that no person
can be subject to that jurisdiction but by his consent, expressed by his entering
into a stipulation.'

54

And even this mode of subjecting the person, through the medium of a
stipulation, it is well known, was itself resisted at first, and acquiesced in only
on the ground of its being an indispensable incident to the exercise of the
jurisdiction in rem.

55

In Keble's Reports, (p. 500.) quoted by Brown, it is expressly said, 'that without
a stipulation, the Admiralty has no jurisdiction at all over the person.'

56

In the case of Ousten v. Hebden, (1 Wils. 101.) where one libelled in the
Admiralty, to compel his part owner in a ship to join in a sale, a prohibition was
granted, upon the ground that this was in fact an attempt to exercise a
jurisdiction in personam.

57

There is a class of cases which may appear, at first view, to maintain a contrary
doctrine, but which, upon examination, will be found consistent with the
general principle.

58

The case of Manro v. Almeida, decided in this Court, was one of that
description. They are cases in which the Admiralty proceeds quasi in rem,
when the subject of the suit is withdrawn from its jurisdiction. These cases
proceed upon the supposed contempt in withdrawing the res subjecta from the
process in rem. This was the case of Smart v. Wolf, (3 Term Rep. 323.) in which
the prize Court had improvidently ordered the cargo of the captured vessel to
be delivered to the captors, reserving the question of freight, but without taking
a stipulation bond, in a sum equal to what afterwards appeared due for freight.
A monition from the Admiralty was sued out to the captor's agent, to respond to
the captain's demand for freight, to the full amount decreed to him; and against
this proceeding, the Court of King's Bench refused a prohibition.

59

Here the prize Court acted upon a quasi hypothecation of the goods for the
freight, resulting from their reserving the question of freight; and considered
the captors in the light either of their own bailee of the goods, or in his original

relation of captor, against whom, if the goods are not returned on monition, the
Court proceeds as on contempt.
60

In Manro v. Almeida, (10 Wheat. Rep. 472.) the libellant claimed redress
against a foreign captor, in a cause peculiarly of Admiralty jurisdiction. The
captain of a foreign privateer had, on the ocean, seized a sum of money in
dollars, the property of the libellant, which the libellant alleged had been
piratically taken; and finding property of the captor here, sued out process
against the captor for the purpose of examining before the Admiralty the
correctness of the seizure, and obtaining indemnity for it. The principal
question considered in that case, arose on the form of proceeding; but the object
was the prosecution of a suit in rem, to wit, to obtain restitution of the $5,000
seized by Almeida on the ocean, as prize.

61

A case very similar to this is to be found in a note to the case of Smart v. Wolf,
in which the Admiralty proceeded against the agents of a captor to subject to its
jurisdiction a sum of money that had been taken out of a prize, and passed into
account between the agent and his principal.

62

On the cases of this class, two remarks will always hold good. 1st, They are
instances in which the Court of Admiralty had jurisdiction of the principal
question, not contracts, but maritime torts and prize causes, or their incidents;
and, 2dly, that the process in personam is only the means to get possession of
the res subjecta; that is, of exercising an unquestionable jurisdiction in rem.

63

We sometimes hear of a concurrent jurisdiction between the Admiralty and

common law Courts. But, on the subject of contracts, which is the subject now
under consideration, I deny that, with the exception of seamen's wages, any
such concurrent jurisdiction can exist. It is an absurdity in terms, for the rule
which goes through all the cases, is in direct hostility with it. If the common
law can try the cause, and give full redress, that alone takes away the
Admiralty jurisdiction. This is the principle on which the decisions rest from
the remotest periods. The contract of bottomry is sometimes cited as an instance
of concurrent jurisdiction. But it is a mistake, and an instance cannot be cited,
better to illustrate the true doctrine on this subject, than this species of contract.
If executed by the master, jurisdiction of it is exclusive in the Admiralty,
because it gives remedy only in rem. But if executed by the owner, it becomes
also a personal contract. Yet who ever heard of a remedy upon it as such, any
where but in a common law Court, or a Court of equity? The contract of
respondentia, which is as much a maritime contract as bottomry, gives no
jurisdiction to the Admiralty either in rem or personam. (2 Brown, 196, 197,
and 4 East. p. 319.)

64

The case of Menetone v. Gibbons, (3 Term Rep. 267.) has nothing new in it; it
is a recognition of doctrines as old as the hills. The question was, whether an
hypothecation was taken out of the Admiralty jurisdiction, because it was, in
that instance, a sealed instrument. The general jurisdiction of the Admiralty to
proceed in rem on a bottomry bond, was not denied. The Court explicitly
acknowledge the doctrine, 'that if the common law can try the cause, the
Admiralty shall not, and affirm the jurisdiction of the Admiralty merely on the
ground that there was no action against the party at common law, and the
common law Courts could not proceed in rem under the hypothecation.' As to
the rule there laid down, 'that the jurisdiction of the Admiralty shall be
adjudged secundum subjectam materiam, it is as ancient as Bridgam's case, in
the time of Hobart. But this decision is of importance here in two points of
view; since the Court reason upon the principle throughout, that the Admiralty
jurisdiction is to be tested by the common law remedy, and the grant of
prohibitions.

65

There was a case decided in this Court in the year 1824, which merits some
attention. I mean the case of The St. Jago de Cuba; in which the Court, at first
view, would seem to have given a decision in favour of the claims of material
men upon a foreign ship, in a case where no actual hypothecation had been
executed. But there are several considerations from which it will appear, that
the Court did not commit itself on that subject. The most material is, that the
question arose upon the application of money in the registry of the Court,
arising from the sale of the vessel for another cause. And, in such instances, it
will be seen from several cases, some of which have been noticed in the course
of this discussion, that the Court may act towards creditors as if that had been
done which might lawfully have been done in their favour. And there is a
peculiar propriety in doing this, when the Court, by selling the vessel, has put it
out of the power of the captain to give that security to creditors which it is
reasonable to suppose would have been given, where the captain had no other
means of getting advances made of money or materials. Several cases have
been noticed of the captain himself having the benefits of an actual
hypothecation extended to him when he expends his own money where he
might have raised it on bottomry, and the proceeds of the vessel are in the
registry of the Court. Yet this has been severely questioned in the British
Courts. (9 East, 426.) Attention to the language of the Court, also, will show,
that they have been guarded on this subject.

66

The question which the Court is examining is, not whether the lien of a material
man attaches independently of an actual hypothecation, but whether, if the
master has exercised this 'power of pledging or subjecting the vessel to material
men,' the forfeiture to the government, without notice, would supersede their

rights. And, although speaking of implied liens, whether the material man here
retained his supposed lien on the money in the registry, was distinctly the
question, and the language of the Court ought not to have any other effect given
to it.
67

Yet, I am free to confess, individually, that in a case in which an hypothecation

would be so clearly valid and legal, if actually made, I should want nothing but
authority to induce me to sustain such a claim against the vessel; with regard to
money in the registry, I think this case is authority for sustaining it, and that it
is sanctioned by other authorities. (Vide case of The New-Jersey and the John,
3 Rob. 288.)

68

Mt. Brown (2d vol. p. 100.) has thought proper to charge the common law
Courts with having 'involved the subject we are now upon in endless
confusion.'

69

To me it appears, that the charge may more correctly be made upon those who
have engaged, like himself, with so much zeal, in an effort to shake the
authority of a course of decisions that are uniform and consistent, and with one
single exception, (which exception is acknowledged as arbitrary, or positive
law,) reducible to a single principlea principle altogether fatal to this action in
its origin, since there can be no question that the party here had his common
law remedy.

70

And I consider the effort particularly ungracious in an author who is driven to

acknowledge its futility so often; one who confesses, in so many words,

71

'That if the parties have bound themselves to answer personally, the Admiralty
cannot take cognizance of the question.' (vol. 2. p. 101.)

72

'That the Admiralty has, in a great measure, (he should have said, altogether,)
dropped its claim to taking cognizance of charter-party, freight, and suits by
material men, and almost all other proceedings upon contract, except those for
recovery of seamen's wages, or enforcing bottomry bonds.' (p. 103.)

73

'That the Admiralty is excluded from jurisdiction of contracts if personal, or

sealed, or made on land.' (p. 107.)

74

'That the jurisdiction of the Instance Court of Admiralty, which is at present

seemingly (he should have said actually) allowed by the law Courts, is, that it is

confined, in matters of contract, to suits for seamen's wages, or those on

hypothecations; in matters of tort, to actions for assault, collision, and spoil; and
in quasi contracts, to actions by part owners for security, and actions of
salvage.' (p. 122.)
75

'That the contract of insurance is, in practice, uniformly and decidedly out of
the cognizance of the Admiralty.' (p. 188.)

76

And, finally, to acknowledge, in the last page of his book, among his errata et
omissa,

77

'That personal contracts are held not to be cognizable in the Admiralty.'

78

It has sometimes been said, that this is a disputed jurisdiction; but by whom is it
disputed? Not by the Courts of Great Britain; for, in all their Courts, as well of
common as of civil law, when called distinctly to act upon the jurisdiction of
the Admiralty, there is no dispute, no contrariety of opinion; they all are
governed by the same rules of decision. From time to time, some extravagant
admirer of Admiralty jurisdiction, or royal prerogative, has risen up in England,
who has revived the ancrent murmurs uttered by the friends of that Court, when
reluctantly putting on its usurped powers; but, with that exception, I know of no
part of the English law that seems more clearly fixed than that of the Admiralty
jurisdiction. The misfortune is, that people will not be content to leave it as they
find it, but employ themselves in efforts to revive what they cannot but
acknowledge has been long since extinct. If the learning upon this subject
should appear remote and antiquated, let it be remembered, that the law has
been fixed in England for two centuries. And since the futile attempt of Sir L.
Jenkins to revive it, no one, I believe, until Mr. Brown appeared before the
public, had made any attempt to change the law of the Admiralty in that
kingdom.

79

I have felt it my duty to pay some attention to the subject for several reasons.

80

In the first place, I stand before the public as bearing my share of the
responsibility incurred for certain opinions expressed in the case of The
General Smith. For the just extent of my responsibility in that case, I must rely
on the repeated decisions which I have made in my circuit in hostility with that
doctrine. But I am willing to treat it as my own error, and shall, on that ground,
claim the privilege of treating it with the greater freedom; at least I shall
endeavour to administer the antidote if I have diffused the poison, and claim
credit for an unequivocal proof of my repentance by a public acknowledgement

that it was inexcusable.

81

I will now examine that case upon its authorities and its consistency with itself.

82

The case of The General Smith was a case of the most extravagant attempt ever
made to enforce this supposed lien of material men. It serves to show to what
embarrassments the commercial world might be exposed by pushing these
maritime liens to excess. Since, upon the same principle on which the libel was
there filed, however long the time that had elapsed, whatever number of
voyages the vessel had made, and whatever changes of property she might have
passed through, she would still have remained liable to material men. For, in
that instance, the General Smith had made a voyage, and the property of her
been changed, before the libel was filed. She was admitted, too, to be an
American ship, in her home port. The Court below very properly dismissed the
libel, and this Court did not hesitate to affirm the dismission; and, confined to
its just import, as an adjudication, it is most unquestionably correct.

83

No man will subscribe more implicitly than myself, to the authority of

decisions in this Court; and I am ready at all times to adhere to the principles
necessarily deducible from, or conducing to such decisions. But farther than
this no judge is bound to subscribe to authority, for no other subjects are
considered and adjudicated.

84

But the report informs us, that Mr. Pinkney, who argued against the material
men, 'admitted the general jurisdiction of the District Court as an Instance
Court of Admiralty over suits by material men in personam and in rem, but
denied that a suit could be maintained in the present case, because the parties
had no specific lien upon the ship for supplies furnished in the port to which
she belonged. That in the case of materials furnished or repairs done to a
foreign ship, the maritime law has given such a lien, which may be enforced by
a suit in the Admiralty. But in the case of a domestic ship, it was long since
settled by the most solemn adjudications of the common law, (which was the
law of Maryland,) that mechanics have no lien upon the ship itself for their
demands, but must look to the personal security of the owner.' (4 Wheat. Rep.
441, 442.)

85

Now I have too high an opinion of Mr. Pinkney's lawreading, and of his talents
as an advocate, not to be well convinced that in this, as well as the residue of
the argument attributed to him, he must have been misunderstood. And I find
my sanction for this belief upon the face of the report itself; for, with the
exception of the nullity of the lien claimed against a domestic ship, the

authority which he quotes to sustain his doctrine, contradicts it in so many

words.

86

87

His quotations are Abbott on Ship. pt. 2. ch. 3 sec. 9 to 13, and the case of The
Levi Dearborne, (4 Hall's Am. L. J. 97.) The last quotation was a case of
material men suing in rem in a home port, and was in point. But the quotation
from Abbott was no other than the very passage on which I have before
commented, and which, although commencing with stating the doctrines
ascribed to Mr. P. as prevailing on the continent of Europe, shows most
distinctly that the law is otherwise in England. Mr. P. never would have quoted,
to support such doctrines, an author who has been shown to assert 'that a
shipwright, who has once parted with a ship, or has worked upon it without
taking possession, and a tradesman who has provided ropes, sails, provisions,
or other necessaries for the ship, (i. e. material men,) are not by the law of
England preferred to other creditors, nor have any particular claim or lien upon
the ship itself, for the recovery of their demands.'
Mr. Pinkney's quotation from Abbott comprises, and is limited to the sections
that are occupied in maintaining the doctrine thus laid down by the author, and
in showing, expressly, that it extends to a foreign as well as a domestic ship. In
section 10, the author cites Justin v. Ballam, (2 Lord Raym. 805.) which he
considers as conclusive against the foreign ship. The distinction taken, is not
between a domestic and foreign ship, but between a ship 'on her voyage and
absent from her owner, and one in her home port.' And, even in that case, the
law as laid down by the learned an notator to Abbott, in a note to the 8th
section, upon 9 East, 426. in the language of Lord Ellenborough, is, 'that the
master may hypothecate, not that the hypothecation attaches per sc on the
contract for necessaries.' It is true, he cites Judge Peters' decision in the case of
The New-Jersey, for a contrary doctrine; but he seems not to have adverted to
the distinction recently admitted between distributing money in the registry,
which it Judge Peters' case, and that of arresting the vessel ad subjecting her to
sale. Nor has he adverted to the fact, that Judge Peters places his decision on
the authority of the English cases, which the text of Abbott alone will snow are
directly hostile to it. To which may be added, that even Judge Peters does not
countenance the doctrine of a right of proceeding in personam, attributed to Mr.
Pinkney. But this, also, when we find the rest of his reported argument so
clearly a mistake, we have good reason for hesitating to ascribe to him. And the
rather, for that, so well read a lawyer would not have advanced so bold a
doctrine, without attempting to find some shadow of authority for it. Even Mr.
Winder, who argued against Mr. Pinkney, does not venture to put his case upon
the law of England, but relies upon the law of the continent, and insists on a
right arbitrarily to adopt it here.

88

Mr. Winder quotes Judge Winchester's decision, and the case of De Lovio v.
Boit, from 2 Gallison, 400. But Judge Winchester affords no authority, since he
decides on grounds which I have shown to be altogether heterodox or exploded.

89

With whom the idea originated, that the Admiralty and maritime jurisdiction
vested by the constitution on the United States, was that which the Admiralty
possessed or pretended to, before the time of Richard II., I am at a loss to
conceive. Judges Hopkinson, Bee, and Peters, all distinguished revolutionary
men, educated before the revolution, and deeply engaged in public life until
long after the constitution, concurred in fixing the period of the revolution for
the law of the jurisdiction of the Admiralty. And who can doubt that the
doctrine of that day was, that the jurisdiction anciently claimed by that Court,
was founded in usurpation. The acts of Richard expressly declare it; that of
Henry treated it as vain and void; and such all history proves it. Yet it is only by
going back to those early times, that shadow of authority can be found for the
pretensions which it seems disposed to put forth in our day.

90

Of the case in 2 Gallison, I will only remark, that it was a decision in the first
circuit, in which the right to proceed in personam in the Admiralty was
asserted, in a suit upon a policy of insurance; and if the nisi prius decisions of
the judges of this Court are of any authority here, it is only necessary to
observe, that a contrary decision has been rendered in the sixth circuit. Let
them, therefore, fall together; and let the question be tested upon principle and
authority, independent of those decisions.

91

I now come to the consistency of the opinion of the Court in The General
Smith, with itself.

92

That decision is, that the common law is the law of Maryland with regard to the
rights of material men, and that it has long since been settled that they have no
remedy in rem. But the opinion is introduced with a dictum purporting, that had
they sued in the Admiralty in personam, there would have been no doubt of
their right to proceed.

93

And here the question is, whether there can be found any where in the books, a
case in which an action in personam could be maintained in the Admiralty,
wherein the action in rem was denied to that Court. No such case can be found;
and the reason is obvious; that right alone would take away the Admiralty
jurisdiction altogether, since it would follow, that the right might be pursued at
the common law: the case of seamen's wages always excepted, which I regard
as positive law, and which, indeed, has been supposed by some to be retained

by the Admiralty, under the authority given that Court by a statute of one of the
Henrys, to control mariners in regard to the amount of their wages.

94

Let the cases be searched from the remotest period down to the time of
Menetone v. Gibbons, and the ground of prohibition, and of recovery, under the
2d of Henry IV. will uniformly be found to be the competency of the common
law to enforce the contract. This is the principle by which even their
jurisdiction in rem is controlled, and hence it follows, that in no case in which
they are prohibited from proceeding in rem, can they heve the action in
personam.

95

I consider the decision, therefore, in the case of The General Smith, as

conclusive against the doctrine which asserts the right of material men to
proceed in personam, and upon the authority of which the present suit is
avowedly instituted. At least, as there is no authority given for it by the Court,
we may conclude, that it has no better authority than that on which we are
given to understand Mr. Pinkney relied for the same dectrine.

96

I have now said a great deal on this subject, and I could not have said less, and
discharged the duty which I feel that I owe to the community. I am fortifying a
weak point in the wall of the constitution. Every advance of the Admiralty is a
victory over the common law; a conquest gained upon the trial by jury. The
principles upon which alone this suit could have been maintained, are equally
applicable to one half the commercial contracts between citizen and citizen.
Once establish the rights here claimed, and it may bring back with it all the
Admiralty usurpations of the fifteenth century. In England there exists a
controlling power, but here there is none. Congress has, indeed, given a power
to issue prohibitions to a District Court, when transcending the limits of the
Admiralty jurisdiction. But who is to issue a prohibition to us, if we should
ever be affected with a partiality for that jurisdiction?

97

I, therefore, hold, that we are under a peculiar obligation to restrain the

Admiralty jurisdiction within its proper limits.

98

That in case of contracts it has no jurisdiction at all in personam, except as

incident to the exercise of its jurisdiction in rem.

99

That with regard to the contracts of shipwrights and material men in her home
port, the vessel cannot be subjected, unless by express hypothecation by the
owner.

100 That on her voyage, and where the master is destitute of other means of raising
the necessary funds, she may be so subjected by the master, but it must be by
actual hypothecation.
101 But that when the ship has been sold for other claims, and the money in the
registry, so that the master no longer has it in his power to raise money on her
bottom to satisfy demands which have been legally incurred, cases may arise in
which the claims of material men and shipwrights, and of the master himself,
may be sustained, without actual hypothecation.
102 Decree affirmed.g given in the third volume of this work, Mr. Pinkney's
argument in the case of The General Smith. Whether the Editor was so
unfortunate as to misunderstand the argument of that truly learned person, he is
willing should be determined by the test proposed in the above opinion. No
other reason is there given for questioning the accuracy of the report, than that
Mr. Pinkney was too well read a lawyer, and too able an advocate, to have
urged an argument which is contradicted by the authorities he cites in its
support.
103 This argument includes the following positions:
104 1. An admission of 'the general jurisdiction of the Admiralty over suits by
material men in personam and in rem.'
105 All that is necessary to remark upon this passage is, that it was superfluous for
Mr. P. to cite any authority for a concession volutarily made by him, argumenti
gratia, and it does not appear that the authorities subsequently referred to in the
margin were intended for that purpose. On this occasion, as on many other
occasions, he probably spoke from the fulness of his learning, and with a
confidence inspired by his well grounded reliance upon its accuracy
106 2. That no 'suit could be maintained in the present case, because the parties had
no specific lien upon the ship for supplies furnished in the port to which she
belonged.'
107 This is admitted to be an exception to the sweeping denunciation against the
applicability to the argument of the authorities cited in its support. The
authorities cited are, 'Abbott on Shipp. pt. 2. ch. 3. s. 9-1S. and the cases there
cited. Woodruff et al. v. The Levi Dearborne, 4 Hall's Am. Law Journ. 97.'

108 3. 'That in the case of materials furnished, or repairs done to a foreign ship, the
maritime law has given such a lien, which may be enforced in the Admiralty.'
109 The passage cited from the text of Abbott, (s. 9.) shows, that by 'the maritime
law' of all Europe, England only excepted, material men have such a lien, which
may be enforced in the Admiralty. Such was the law of Rome, and such is the
law of all the maritime countries of the European contient. Such, too, was the
law of Scotland, until it was recently altered by a decision 'founded principally,
as it seems, upon a desire to render the law of Scotland conformable to the law
of England upon this subject.' (Abbott, pt. 2. ch. 3. s. 14. p. 142.) How far the
limits prescribed to the jurisdiction of the Admiralty in England over maritime
contracts, by the decisions of the common law Courts, after ages of
controversy, had been adopted in this country before the revolution and how far
the grant of Admiralty and maritime jurisdiction in the constitution of the
United States is to be construed with reference to those decisions, are questions
foreign to the purpose of this note. The only question here is, whether Mr.
Pinkney was warranted in quoting this passage, 'and the cases there cited,' as an
authority for the position, that 'the maritime law has given such a lien, which
may be enforced in the Admiralty.' The question is not whether the authority is
conclusive to support the position; but whether it is sufficiently pertinent to
render it probable that it was actually referred to for that purpose. It may be,
that there is, as is contended in the above opinion, some discrepancy among the
decisions of the Admiralty judges in this country on the subject; but still the
cases collected in a note to the American edition of Abbott, (p. 160.) are
believed to be sufficient to rescue the argument attributed to Mr. Pinkney from
the imputation of being directly contradicted by the authorities quoted to
sustain it. The case of The Levi Dearborne, determined by Mr. Justice Johnson
in the Circuit Court of Georgia, is also quoted by Mr. Pinkney for the same
purpose. That 'this quotation was in point,' will appear by the following extract
from the opinion of the learned judge, as we find it reported by Mr. Hall. 'The
lien on vessels for material men and shipwrights, exists only in a foreign port.
Where the owner is present and resident, the common law principle must
govern. In such case, no lien on the vessel is created. In the case of the owner,
who, though present when the work and materials are furnished, is transient
and non-resident, I am disposed to think otherwise, and that in such case the
lien attaches. It is proper also to state, what shall be deemed a foreign, and what
a domestic port, as to this question: the sea ports of the different States ought, in
this respect, to be considered as foreign ports in relation to each other.
Charleston, for instance, is a foreign port, as to a claim of this nature made in
Savannah.' 4 Hall's Law Journ. 101.
110 4. That 'in the case of a domestic ship, it was long since settled by the most

solemn adjudications of the common law, (which was the law of Maryland,)
that mechanics have no lien upon the ship itself for their demands, but must
look to the personal security of the owner.' This position is not denied to be
supported by the authorities said to have been quoted by Mr. Pinkney; but the
error imputed to the report consists in the asserted liability of a foreign ship to
such a lien, which (as it has been seen) is recognised and enforced by the
general maritime law, and which appears also to have been maintained by
several Admiralty judges in this country, and especially by Mr. Justice Johnson,
although it may not have been adopted by the peculiar law of England.
111 In making these remarks, the Editor has certainly not been influenced by any
feelings of disrespect towards the learned judge by whom the above opinion
was delivered, nor even by a desire to controvert the peculiar doctrines
maintained in that opinion. It is his own character for accuracy and integrity as
the Reporter of the decisions of this Court which the Editor feels to be assailed,
and, therefore, seeks to vindicate. It is a duty which he owes to the Court, to the
profession, and to his own reputation, to maintain the fidelity of the Reports,
which are received as authentic evidence of the proceedings and adjudications
of this high tribunal. If they are not to be relied on in this respect, they are
worthless. In closing his labours, the Editor has the consolation of reflecting,
that it has been his humble aim to do justice to the learning and talents of the
bar, and to uphold the honour and dignity of the bench. How far he has
succeeded in this attempt, it does not become him to speak; but he is willing to
submit to the impartial judgment of his professional brethren, whether the
above accusation is supported by evidence.

The General Smith. 4 Wheat. Rep. 438.

Chitty on Bills, 5 ed. 123. 130. 6 Cranch. 253. 2 H. Black,

Evans' Pothier, 380. 386. Pothier, 386.

4 Wheat Rep. 438.

Yelv. 66. Selw. N. P. 1163. 3 Burr. 1498.

4 Burr. 1950. 1 Peters' Ad. Dec. 238. 6 Term Rep. 320. 2 Bro. Civ. end Adm.
Law, 88. 97. 1 Salk. 31.

The Editor of these Reports feels it to be a duty which he owes to self respect,
and to the independence of the bar, to take come notice of the comments made
in the above opinion upon the account